The United States Supreme Court has ruled in favor of the video game industry and retailers in Brown v. Entertainment Merchants Association (formerly known as Schwarzenegger v. Entertainment Merchants Association). The full opinion can be found here. According to Justice Scalia, who wrote the opinion: "the act forbidding sale or rental of violent games to minors does not comport with the 1st Amendment." Alito concurred with the judgment, joined by the Chief Justice. Justices Thomas and Breyer dissent, in an opinion by Thomas - according to SCOTUSBlog.

The court had to decide if a state law restricting the sale of violent video games to minors violated the First Amendment right to free speech. The Ninth Circuit Court ruled in favor of the EMA, saying that the law violated the First Amendment.

The law was written by California State Senator (D-San Francisco) Leland Yee and signed into law by California Governor Arnold Schwarzenegger in 2005. The law was immediately challenged by the video game industry and retail advocacy groups in the United States District Court for the Northern District of California. A judge put a permanent injunction on the law, ruling that it was unconstitutional because it violated rights protected by the First Amendment.

Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

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Debates are like merry go rounds.
Two people take their positions then they go through the same points over and over and over again. Then when it's over they have the same positions they started in.

Then it sounds like you didn't read the oral arguments back in November. Sotomayor asked if they'd ban Bugs Bunny cartoons next, and pointed out the ridiculous loophole that you could just put pointy ears on a human and call him a Vulcan to get around the ban.

No, Sotomayor's vote wasn't a surprise. I'd have expected Roberts to side with California from the oral arguments, though, and Thomas to side with EMA based on his history.

I haven't logged into my GamePolitics account in, I think, well over a year. After my dad texted me today while at work talking of this victory, though, I knew it was time to log back in, finishing this saga of my life.

I had lots of fun, GamePolitics, back in the day. I'll probably be too busy to log in and actively comment much, but I will try and take time to read the awesome gaming news, especially concerning the law, in the coming years.

Woot. The Supreme Court certainly made the right decision, even if some of the responses were slightly worrysome.

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

-Optimum est pati quod emendare non possis-It is best to endure what you cannot change-

I chose to skim though the two disenting opinions and I find Thomas's most concerning and unrational. Namely, in his dissenting response he basically makes ONE argument; free speech does not include the right to speak without going through the minors parents/guardians. And while I can see why he thinks that based on what he's written, the issue at hand is asking him what about EVERY OTHER argument that has been made against this law. Even if we respect his stance on free speech he still has not at all addressed all the other reasons that were presented against this law, like limiting the law to a certain medium, the weak scientific support for the law, of the lack of clear definition for violence. The court had many reasons to reject this law, and if you are going to disagree with the court then you SHOULD take issue with most of those reasons. The fact that he did not address all of the other arguments at all makes it seem like he just plain IGNORED those arguments.

Breyer also disented to the decision, but he however did take time to address multiple sides of the arguement. Granted he's still wrong as some of his arguements are short sighted and don't take certain things into account, but atleast he showed he was considering the WHOLE case, and not just one angle.

Breyer said the court's decision creates an insurmountable conflict in the First Amendment, especially considering that justices have upheld bans on the sale of pornography to children.

"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer said. "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman - bound, gagged, tortured and killed - is also topless."

Where they get those examples? If there is already a game like the one they are mentioning, it´s obviously the more obscure and unknown game around. Do they think that such game is today avaliable on Walmart? Why even consider such an hypotetical game to uphold a law project like this?

Anyways, this is still a great day for all gamers around the world. Let´s hope this day can be used as precedent next time another oportunistic politician tries to pull out another show like this one.

While i think the fact that the idustry hasn't made such games would help the argument about whether or not there is a prevailing NEED for a law such as this, i do also think it is fair for judges to take hypothetical possibilities into consideration. When it comes down to it, the decision is meant to reflect their stance on violent video games as a whole, not just what's currently available. Cause if the game industry DID make such game for sale, the court isn't gonna want to have to look back at this same case and have rethink its decision; if they did, every new game that set a new bar for violence would mean taking a seocn look at this law about violence and games being appropriate. The decision made by the court should try to be an absolute final decision on the issue, or as close as one can get, and i think that means considering the possibilities of what might come into the future. Just as the court considers the theortical chilling effect the law would create if it passed, it should also consider the therotical games that could be made. Not saying I agree with Breyer, but only saying that these are things i think the judges should be allowed to consider in their decisions.

While hypotheticals, slippery-slope arguments, and analogies may be unwelcome in most debates, they're actually totally valid in Supreme Court opinions, precisely because those rulings have potential consequences far beyond the narrow scope of the single case being presented.

Breyer actually makes a valid point -- just not the one he intends to.

"If A is illegal, B should be illegal too" is logically equivalent to "If B is legal, A should be legal too."

Strawman or no, I WOULD be more comfortable if my (hypothetical) child saw boobies than if he saw one of the more violent scenes in one of my games. Of course, the reasonable interpretation of this is "ban neither" instead of "ban both".

Scalia's opinion(18 pages, joined by Kennedy, Ginsburg, Sotomayor, and Kagan), that wasn't already in the holding summary:

Cites U.S. v. Playboy, "Under our Constitution, 'esthetic and moral judgments about art and literature...are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority."

Says that the holding in U.S. v. Stevens controls Brown(Schwarzenegger) v. EMA, and in a footnote, rips Alito for suggesting in his concurrence that strict scrunity wasn't applied in Stevens, and even said that Stevens leaving open the possibility of a narrowly drawn statute being held constitutional was irrelevant in this case, saying that "there is no contention that the any of the virtual characters in the imaginative videos at issue here are criminally liable".

Says that SCOTUS is quite clear that obscenity only covers sexual conduct and also cites Winters v. New York.

Says California was wise not to argue that it was empowered to prohibit selling offensively violent works to adults, as that would have made its argument closer to the one rejected in Stevens.

Cited Erznoznik v. Jacksonville, that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them" and "Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be surpressed solely to protect the young from ideas or images that a legislative body thinks unsuitable of them."

And in another footnote, Scalia criticizes Thomas for ignoring the holding of Erznoznik, saying that Thomas cited no case supporting his view, and criticized Thomas' dissent, saying that "the state does not have the power to prevent children from hearing or saying anything without parents' prior consent", saying that a person under 18 going to church or to a political rally(even a rally supporting further expansion of minors' rights) without parents' prior consent could be made criminal, saying that such laws do not enforce parental authority, but impose governmental authority "subject only to a parental veto".

Says that the books minors read or have read to them have gore in it, citing Hansel and Gretel, Snow White, Cinderella, The Odyessy, Dante's Inferno, Lord of the Flies.

Another rip on Alito in a footnote: JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature.”

Mentions "Choose Your Own Adventure" books when refering to California's claim of video games' interactivity causing special problems, and cites Posner's opinion in the Indianapolis case that all literature is interactive.

Again criticizes Alito for mentioning certain games in his concurrence to "disgust us" and says that "disgust is not a valid basis for restricting expression and the same is true of Alito's discription of games that have a racial or ethnic motive for their violence.":

To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

Says California must identify "an actual problem in need of solving" and that "restricting free speech must actually be necessary to the solution", and says California cannot meet that standard by admitting that they couldn't show a direct causal link between violent video games and harm to minors.

Says that California's reliance on Turner Broadcasting v. FCC is misplaced, saying that "California's burden was much higher and ambiguous proof will not suffice".

Says California's evidence was not compelling because the research did not prove that violent games caused minors to act aggressively. That nearly all the research is based on correlation, and most studies suffer from significant, admitted flaws in methodology, citing Craig Anderson's admissions that "effect sizes" of exposure to violent games were "about the same" produced by exposure to television and that the same effects were found after watching Bugs Bunny and Road Runner cartoons, E-rated games like Sonic The Hedgehog, even viewing a picture of a gun.

Says in a footnote that a study finding that children were more likely to complete a fill in the blank word puzzle with "explode" rather than "explore" did not constitute a compelling state interest.

Another footnote: JUSTICE ALITO is mistaken in thinking that we fail to take account of “new and rapidly evolving technology,” post, at 1. The studies in question pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified. Nor is JUSTICE ALITO correct in attributing to us the view that “violent video games really present no serious problem.” Post, at 2. Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)),or the problem of encouraging disrespect for the Nation’s flag (Texas v. Johnson, 491 U. S. 397 (1989)).JUSTICE BREYER would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 20–35 (Appendixes to dissentingopinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to JUSTICE BREYER’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 15. Similarly, JUSTICE ALITO says he is not “sure” whether there are any constitutionally dispositive differences between video games and other media. Post, at 2. If that is so, then strict scrutiny plainly has not been satisfied.

Says California gave no persuasive reason why video games should be treated differently than movies, books, or cartoons.

Another swipe of the butcher knife: The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.

Cites the ESRB and the FTC's secret shopper surveys.

Says that "the legislation's effect is only in support of what California thinks parents ought to want."

Scalia's conclusion: California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other.Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

In this case, the Court’s sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors’ access to violent video games is allowed—at least without supporting evidence that may not be realistically obtainable given the nature of the phenomenon in question.

Basically, Alito admits that Scalia's majority opinion kills any chance of California or any other state getting a narrower law to pass Constitutional muster, I think.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Seriously though, now that the Supereme Court hopefully gave the absolute final word on this, politicians will stop wasting money that isn't theirs on this.

I don't need you to protect me from boogeymen, I need the electrical grid updated as well as roads and bridges repaired, and that can't happen, when they're wasting the money in the treasury on goddamn vanity projects like this!!!

"Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint."

Citing Joseph Burstyn v. Wilson, "Basic priniciples of freedom of speech do not vary" with new and different communication medium.

Citing Ashcroft v. ACLU and US v. Stevens, "The most basic priniciple - Government lacks the power to restrict expression because of its message, ideas, subject matter, or content - is subject to a few limited exceptions, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test."

Says California did not adjust boundaries of existing category of unprotected speech with its law and tried to create a new category of content-based regulation for speech directed at children, calling it unprecedented and mistaken. Also says that the United States has no tradition of specially restricting access to depictions of violence to children, and that California's claims of "interactive" video games presenting special problems(players participating in violence and determining the outcome) is unpersuasive.

Citing R.A.V. v. St. Paul, since the California law imposes a content-based restriction, California must demonstrate that it passes the strict scrunity test. And California failed to meet the standard.

Says the psychological studies cited by California did not prove that exposure to violent material causes minors to act aggressively and any demonstrated effects are both small and indistinguishable from effects produced by other media.

Says that since California declined to restrict other media, like Saturday morning cartoons, "its video game regulation is wildly underinclusive" and questioned if California "is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint".

Also says that "California also cannot show that the Act's restrictions meet the alledged need of parents who wish to restrict their children's access to violent videos", saying that the ESRB already accomplishes that "to a large extent".

And says that "as a means to assist parents, the Act is greatly overinclusive, since not all of the children who are prohibited from purchasing violent video games have parents who disapprove of them doing so."

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Great news for gamers! Congrats to the ECA and all who supported them during these events. Of course , as the ECA noted, this is far from over and many more will attempt to push those boundaries but none the less it is a great vidication to stand amongour other medias as a recognized equal.

They took a bit of a cop-out with Ginsberg,.. this case COULD have overturned that older decision since functionally they are the same.. but the opinion left it at 'stuff we have already been doing is ok, new stuff is not'.. rather then address that the justification for the old stuff was just as full of brown sticky horse stuff.

Ginsberg won't be outright overturned. It will never be used for violence, but is still good law when it comes to sexual material. I don't see it going the way of Plessy v. Ferguson or Bowers v. Hardwick, but subsequent cases could narrow its scope to the point to where it's still technically good law, but only has teeth in cases that exactly mirror its original facts.

The thing is, the 'facts' behind ginsberg were worthless. It just came down to 'well, everyone knows porn is bad for minors' without any real need to justify it outside emotional 'common sense' arguments. Just like violence today.

So I disagree, it is not a good law. It is just as bad as California's law, the only differnce is it has been on the books for a few decades and we are a country terrified of sex with this strange idea that if males are exposed to sexual material they will become slobbering rapists.

No, I doubt Yee is crying. And we have to remember that he, supposedly, will have individuals such as police and/or sheriff authorities with him as well as "Parents" who he will use to make all sorts of claims regarding this decision. More than that, he has previously stated that if this one fails, he already has plans to create other, supposedly, constitutional laws. He will, of course, knowingly and intentionally lie to and deceive as many individuals and authority figures as he can in an effort to blatantly attempt to circumvent the US Constitution and the Human Rights of its citizens.

Yee also said that if his previous attempt at anti-games legislation didn't work, he would be done with trying. Being the slimy liar he is, the man immediately went to work with the most recent attempt once the previous one failed. Dirty, slimy, liar.

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ZippyDSMlee: .....win8 hates any left over hidden install partitions from other version of windows....only waste 5 hours finding that out...its ahrder than you think keeping up with 4 or 5 HDDS......03/03/2015 - 4:44am

Matthew Wilson: I am going to pax east, any games you guys want me to check out?03/02/2015 - 11:23pm

ZippyDSMlee: No one remembers the days of Cinemagic and Cynergy eh? :P, meh even MGS is getting to film like....03/02/2015 - 8:44pm

MechaTama31: I was about to get all defensive about liking Metal Gear Solid, but then I saw that he was talking about "cinematic" as a euphemism for "crappy framerate".03/02/2015 - 8:29pm

prh99: Just replace cinematic with the appropriate synonym for poo and you'll have gist of any press release.03/02/2015 - 5:34pm

Monte: Though from a business side, i would agree with the article. While it would be smarter for developers to slow down, you can't expect EA, Activision or ubisoft to do something like that. Nintnedo's gotta get the third party back.02/28/2015 - 4:36pm

Monte: Though it does also help that nintendo's more colorful style is a lot less reliant on graphics than more realistic games. Wind Waker is over 10 years old and still looks good for its age.02/28/2015 - 4:33pm

Monte: With the Wii, nintnedo had the right idea. Hold back on shiny graphics and focus on the gameplay experience. Unfortunatly everyone else keeps pushing for newer graphics and it matters less and less each generation. I can barely notice the difference02/28/2015 - 4:29pm

Monte: ON third party developers; i kinda think they should slow down to nintendo's pace. They bemoan the rising costs of AAA gaming, but then constantly push for the best graphics which is makes up a lot of those costs. Be easier to afford if they held back02/28/2015 - 4:27pm

Matthew Wilson: http://www.forbes.com/sites/insertcoin/2015/02/28/the-world-is-nintendos-if-only-theyd-take-it/ I think this is a interesting op-ed, but yeah it kind of is stating the obvious.02/28/2015 - 2:52pm